Meaning of “Tropical Waters” In Bottom Fouling Clauses

Many time charters contain clauses dealing with bottom fouling/cleaning required when the vessel has been in port for more than a specified period.  Many such clauses refer to the length of the vessel’s stay in “tropical waters”.   A London Arbitration Tribunal was recently asked to consider the meaning of “tropical waters” in such a clause.  
    
The vessel in question called at Santos and both parties agreed that the vessel had stayed there for more than the 30 consecutive days period provided for in the clause.  The dispute centred around whether or not the port of Santos fell within “tropical waters”.

Charterers argued that Santos was not within tropical waters as it did not fall within the Tropics of Cancer and Capricorn, and that the Load Line Regulations were not relevant to the issue of bottom fouling.

Owners argued that the port did fall within tropical waters.  They referred to the Merchant Shipping Load Line Regulations 1998 as amended which specifically included Santos as falling on the southern boundary of the Tropical Zone for load line purposes.  Owners also referred to BIMCO Special Circular No. 3 dated 24 June 2013 which provided guidance in relation to the interpretation of hull fouling clauses.  That circular states that areas that are located on the border of a Tropical Zone or Seasonal Tropical Zone , such as Santos,  should be considered as included in that Zone for the purposes of the BIMCO Bottom Fouling Clause.  Owners argued that the Load Line Tropical Zone expression could be equally applied to tropical waters.

The Tribunal accepted that a strict interpretation of the term would limit the reference to tropical waters to waters located between the Tropics of Cancer and Capricorn.  However, after considering expert evidence the Tribunal ultimately rejected the strict interpretation and decided that waters which were technically outside the Tropics of Cancer and Capricorn could still be considered tropical waters for the purposes of a hull fouling clause.  

It held that “tropical waters” was consistent with warm waters where marine bottom fouling would be prevalent.  They were further reinforced by the Oxford English Dictionary definition which indicated that “tropical” meant typical of the tropics.  The Tribunal held that the expression tropical waters included warm waters where marine growth was rife.  It therefore held that even though Santos was outside the Tropics of Cancer and Capricorn, it was nonetheless within the definition of tropical waters contemplated by the charterparty clause.

On that basis, the Tribunal held that Charterers were responsible for the time and costs involved in bottom cleaning.

The decision is useful to bear in mind where bottom fouling clauses do not refer merely to the length of time of a vessel’s stay in port but require the vessel to be in tropical or warm waters.  Based upon the above decision, time and costs for performing an underwater survey and any consequent bottom cleaning will be for Charterers’ account.